Criminal Lawyers for the Offence of Aggravated Sexual Act | Section 61KF Crimes Act 1900

Aggravated sexual act is an offence under Section 61KF of the Crimes Act 1900.

The section states that a defendant is guilty of a sexual act if he or she, without the consent of the complainant and knowing the complainant does not consent, intentionally and in circumstances of aggravation:

• carries out a sexual act with or towards the complainant, or
• incites the complainant to carry out a sexual act with or towards the defendant, or
• incites a third person to carry out a sexual act with or towards the complainant, or
• incites the complainant to carry out a sexual act with or towards a third person.

A ‘sexual act’ is defined by Section 61HC as any act – other than sexual touching – which is carried out in circumstances where a reasonable person would consider it to be sexual.

The section provides that the matters to be taken into account when deciding if the act is sexual include whether:

• the area of the body involved in the act is the person’s genital area, anal area or – in the case of a female person, or a transgender or intersex person identifying as female – the person’s breasts, or
• the defendant’s actions are for sexual arousal or sexual gratification, or
• any other aspect of the act, or the circumstances surrounding the act, make it sexual.

An act is not considered to be sexual if it is done for genuine medical or hygienic purposes.

Conduct which may constitute a sexual act includes:

• masturbating in front of the complainant,
• inciting the complainant to masturbate,
• carrying out a simulated sexual act, or
• inciting the complainant to carry out a simulated sexual act.

‘Circumstances of aggravation’ means where:

• the defendant is with at least one other person, or
• the complainant is under the authority of the defendant, or
• the complainant has a serious physical disability, or
• the complainant has a cognitive impairment.

The maximum penalty for carrying out an aggravated sexual act is 3 years’ imprisonment.

The maximum penalty increases to two years if the offence was committed against a child who was at least 10 years of age but less than 16; see Section 66DE. In that event, additional factors that can be considered as aggravation are the infliction of actual bodily harm and threatening to inflict actual bodily harm by means of an offensive weapon or instrument.

It is important to bear in mind that these are maximums and the court can impose any of the following penalties for:

• Section 10 Dismissal
• Conditional Release Order
• Fine
• Community Correction Order
• Intensive Correction Order
• Prison

However, an Intensive Correction Order is not available where the sexual act involved a person who was under the age of 16 years.

For a defendant to be found guilty of aggravated sexual act, the prosecution must establish each of the following elements of the offence:

• That the defendant carried out a sexual act towards the complainant, incited a third person to do so or incited the complainant to carry out a sexual act,
• That the complainant did not consent,
• That the defendant knew consent was not given, or was reckless as to whether consent was given.
• That at least one circumstance of aggravation existed.

A prosecution for the offence of aggravated sexual act will fail if each of these elements cannot be proved beyond reasonable doubt.

However, an alternative verdict of guilty of sexual act can be returned if each element except for that of aggravation is established.

In addition to the requirement that the prosecution must prove each element of the offence, it must also disprove any of the following defences if properly raised:

• Duress, which is where you were threatened or coerced,
• Necessity, where the act was necessary to avert danger, and
• Self-defence, where you engaged in the act to defend yourself or another, and
• Lawful correction of a minor.

Before you can be found guilty of committing an aggravated sexual act, the prosecution must prove beyond reasonable doubt that:

• You carried out a sexual act in the presence of the complainant or incited another to do so,
• You did not have consent to carry out the act,
• You knew that consent was not given, or were reckless as to whether it was given, and
• That at least one circumstance of aggravation existed.

There are a number of ways to defend the charge, including raising the fact that:

• The prosecution cannot prove there was a sexual act,
• The prosecution cannot prove an act was carried out towards or by the complainant,
• The prosecution cannot prove you were the person who carried out any such act or that you incited the complainant or another to do so,
• The prosecution cannot prove you acted intentionally or recklessly,
• The prosecution cannot prove a lack of consent;
• You were coerced or threatened into commit or it was undertaken in self-defence or out of necessity, or
• The prosecution cannot prove that a circumstance of aggravation existed.

If any of these matters prevail, you must be found not guilty of aggravated sexual act.

However, you may be found guilty of the alternative offence of sexual act if each element except for a circumstance of aggravation is established.

A good lawyer will be able to make written submissions to the prosecution with a view to having the case against you withdrawn, or fight to have it thrown out of court if it proceeds to a defended hearing or trial.

Where the prosecution evidence is very strong, you may decide to plead guilty to the offence.

In that case, your lawyer may be able to negotiate a lesser charge – such as sexual act (not aggravated) – as well as the amendment of the ‘agreed facts’ that are handed-up to the court, which can significantly reduce the seriousness of the offence, including the applicable penalties.

Your lawyer can also guide you on obtaining materials which can be handed-up to the court during your sentencing – including a letter of apology, character references and any documents from counsellors or health care professionals you have consulted.

These materials, together with persuasive verbal submissions by your lawyer in the courtroom, can help to ensure you receive the most lenient penalty that is possible in the circumstances.

By pleading guilty at an early stage, you will also be entitled to a ‘discount’ of up to 25% on your sentence – which can lead to a less serious type of penalty being imposed; for example, a section 10 dismissal or a conditional release order rather than a more serious penalty.

You will also be spared the time, expense and stress of a defended hearing or trial.

No. Unlike the offence of ‘sexual touching’, a sexual act does not involve physical contact.

The time of the act is what’s important. The prosecution must prove beyond reasonable doubt that:

• The other person did not consent at the time of the act, and
• You knew the other person did not consent, or you were reckless as to whether or not they consented.

This means a person cannot consent and later, after the conclusion of the act, claim they did not consent.

That said, it should be noted that certain people are incapable of giving consent including those under the age of 16, and those with a cognitive impairment when the other person is responsible for their care.

Sexual act has replaced the offence of act of indecency in NSW.

The new offence attempts to better describe and clarify the acts that are prohibited under the law, both with the naming of the offence and the definition of sexual acts and the matters relevant to determining whether an act is sexual.

This means one or more of the following situations exist:

• the defendant was with at least one other person when the alleged sexual act occurred, or
• the complainant was under the authority of the defendant at that time or generally, or
• the complainant was suffering from a serious physical disability, or
• the complainant had a cognitive impairment.

Going to court can be nerve-racking, but having a strong and compassionate legal team behind you can make the experience significantly easier to deal with.

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